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23 Ohio State Journal on Dispute Regulation 231 (2008).

Abstract

Debate over the relative merits of communitarian and adversarial theories of dispute negotiation has pre-occupied legal bargaining scholarship for at least twenty years. Seen as a negotiation, this debate makes it clear that communitarians are by far the better bargainers. In a move one might think more characteristic of adversarial bargainers, communitarians changed the definition of bargaining effectiveness by reconstituting the world in which bargaining operates (the meta move of the title – in communitarian terms they “changed the game by changing the frame”), and in the process made adversarial bargaining obsolete. Many of the arguments and maneuvers used in this effort are gratuitously combative, disingenuous and manipulative, and based on aesthetic and ideological preferences that have little in the way of empirical evidence to back them up. Often, in fact, these arguments and maneuvers look more like stealth maneuvers for competing successfully for stature and influence in the legal academy than collaborative overtures to partners working on common intellectual problems (also seemingly contrary to communitarian principles). None of this will surprise anyone familiar with the ways of the world. Only communitarians are shocked to discover that they are as competitive as the next person when their own interests are at stake. But it does raise an interesting question of whether the success of the communitarian assault on bargaining theory is a basis for rethinking the nature of effective bargaining. The new communitarian orthodoxy may be a linguistic phenomenon more than a substantive one, the re-labeling (and refinement) of familiar adversarial technique in communitarian terms rather than the discovery of a new communal structure to legal dispute bargaining. Or, at least so I will argue.